SFW
[2011] QCAT 237
•13 May 2011
| CITATION: | SFW [2011] QCAT 237 |
| PARTIES: | SFW |
| APPLICATION NUMBER: | GAA10350-10 / GAA2193-11 / GAA3038-11 / GAA3039-11 / GAA3660-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 4 May 2011 |
| HEARD AT: | Southport |
| DECISION OF: | Mr Ron Joachim, Presiding Member Mr Alexander Brands, Member |
| DELIVERED ON: | 13 May 2011 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | (a) The following Enduring Power of Attorney for SFW is revoked pursuant to s 116(b) of the Powers of Attorney Act 1998: the Enduring Power of Attorney dated 13 August 2008, appointing SM as Attorney for financial matters. (b) The revocations of 17 November 2010 and 23 December 2010 of the Enduring Power of Attorney which appointed SM as Attorney for personal and health and financial matters on 13 August 2008 are declared invalid, pursuant to s 49 of the Powers of Attorney Act 1998. (c) The Public Trustee is appointed Administrator for all financial matters. The Administrator is to provide a financial management plan to the Tribunal within four months. The Tribunal directs the Administrator to provide accounts to the Tribunal when requested. This appointment will remain current until further order of the Tribunal. (d) The Administrator will be directed to identify within three months by way of a search of records of the Titles Office, any property held by the Adult, and to lodge with the Registrar of Titles a copy of this Order, and to provide to the Tribunal a copy of the records and lodgement summary. (e) The Tribunal will make a declaration that SFW does not have capacity for personal and financial matters. (f) The Application for Directions is dismissed, and within three months SS and HV are to arrange an assessment of SFW’s care needs and present a care plan to the Attorney, SM, for consideration. (g) The Application for the appointment of a Guardian is dismissed. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION – CAPACITY – REVOCATIONS OF ENDURING POWERS OF ATTORNEY – NEED FOR APPOINTMENT OF GUARDIAN AND ADMINISTRATOR – DIRECTIONS – Whether adult had capacity to revoke enduring powers of attorney – where adult’s children call attorney’s wife’s actions into question – where revocations witnessed by non-eligible witnesses – where adult taken out of jurisdiction without attorney’s consent – whether need exists for a guardian and/or administrator Guardianship and Administration Act 2000, s 12, sched 4 |
APPEARANCES and REPRESENTATION (if any):
Mr SS, Ms HV, Ms SM, Mr SFW, Mr Andrew Lander
REASONS FOR DECISION
These are oral reasons delivered on 13 May 2011.
The Tribunal is dealing with three applications. The first application was from SM, received by the Tribunal on 22 December 2010, in which she sought a declaration as to SFW’s capacity to make financial and guardianship decisions. She wishes to exercise her role as attorney and wanted to re-join a severed joint tenancy.
The second application was also received from SM on 18 March 2011, seeking advice, directions and recommendations. In that application she was seeking directions that the transfer document dated 19 August 2010, severing a joint tenancy between her and SFW, is invalid and seeking that the joint tenancy should be restored.
The third application was received from HV on 17 April 2010, seeking her appointment, along with her brother, SS, as both Guardian and Administrator for their father SFW.
The hearing took place on the Gold Coast on 4 May 2011. In attendance by phone were SFW, SS, HV and, for part of the hearing, Cheryl Maclaine, Clinical Nurse Consultant at the St Andrews Lutheran Nursing Home. In attendance in person were SM, SFW’s wife, and her legal representative Andrew Lander, who the Tribunal gave leave to represent her.
The issues that the Tribunal needed to consider were: are the revocations of an Enduring Power of Attorney valid, and if so, is there a need for a Guardian and an Administrator. If the revocations are not valid, are the actions of the Attorney appropriate, or if not, is there a need for a Guardian and an Administrator?
SFW is 84 years old. He and SM married on 9 May 1986 when he was 59. SM is quite a bit younger. They lived together in the matrimonial home at Varsity Lakes, that home being in joint names.
Over the years, SFW’s health deteriorated and SM was no longer able to care for him at home, and he was placed at St Andrews Lutheran Aged Care.
Subsequently, SM entered into a relationship with another man, who moved into the matrimonial home.
SFW was removed from the nursing facility by SS around 16 August 2010, and taken to Hong Kong where he continues to reside. The removal was effected after SS had told his father that SM had taken up with another man.
Shortly before leaving for Hong Kong, the joint tenancy of the matrimonial home was severed by SFW, with assistance from his son, SS.
Prior to this in July, SM had bought a Holden Astra for approximately $16,000 for her new boyfriend to use. These funds came from SM and SFW’s life savings.
Somewhere between 18 August and 24 August 2010, SFW removed approximately $1,725 from the joint account he held with SM.
The positions of the parties were as follows: SM wanted to be Attorney. She claimed that SFW was not capable of revoking the Enduring Power of Attorney that he executed on 13 August 2008. She wants him returned to the nursing home, she wants the severed tenancy reversed to a joint tenancy to get her security back, and she wants to live her new life as she’s unable to care for SFW at home.
SFW’s position is that he wants to move back home with SM. He does not want to go back to the nursing home. If he can’t go home, he wants his children to care for him, and he wants his children to be his decision-maker.
The positions of SS and HV are that they wish to be decision-maker. They do not want SM to make decisions for their father as his Attorney.
The status of the Enduring documents and the revocations follow.
On 13 August 2008, SFW gave SM an Enduring Power of Attorney to make decisions for him in respect of both personal and health matters, as well as financial matters. The powers for financial matters were to begin immediately.
On 17 November 2010, SFW in Hong Kong revoked the Enduring Power of Attorney. The witness was one Manuel Pinto, who describes himself as a Private Notary. On 23 December 2010, a further revocation was done, this time by a woman by the name of Chok Seng Mui, who describes herself as a Public Notary’s Assistant.
Section 31 of the Powers of Attorney Act 1988 outlines who can be eligible witnesses. This includes a Justice of the Peace, a Commissioner for Declarations and Public Notaries and Lawyers.
Section 49 outlines the formal requirements for a revocation. The witnesses required for a formal revocation do not fit the categories of Private Notary and Public Notary’s Assistant. The Tribunal therefore has declared that the revocations are invalid because the witnesses were not eligible witnesses.
In respect of jurisdiction, the Tribunal has jurisdiction in relation to Enduring Powers of Attorney, and the appointments of Guardians and Administrators. This is conferred on the Tribunal through s 12 of the Guardianship and Administration Act 2000 and s 109(a) of the Powers of Attorney Act 1998.
The Tribunal is also able to make declarations about capacity under s 146 of the Guardianship and Administration Act 2000. The Tribunal has no powers to make orders restoring severed joint tenancies.
The Tribunal will now outline the material before it in respect of the Adult’s capacity now and in the immediate past.
The Tribunal notes at this point there is no need to establish SFW’s capacity in respect of the revocations. The question of their validity has been dealt with.
I shall now outline the history of SFW’s assessments. The first assessment before the Tribunal is that of a Dr Bonev who is a neurologist, who provided a report dated 20 April 2010. In this report he states that he first saw SFW on 16 March 2010. He recorded an MMSE score of 24 out of 30 and noted short term memory loss with impairment of word recognition and construction.
He considered that SFW had a mild to moderate dementia and noted that SFW was not very convinced in respect of his impairment. Dr Bonev noted that SFW had a history of falls and there was fluctuating capacity.
Dr Fink, a physician, in May 2010 noted an MMSE score of 23 out of 30, having been obtained some time in February. He noted mild, moderate impairment and referred to assessments by an occupational therapist, which were not available to the Tribunal, which indicated severe memory impairment, comprehension and reasoning.
He stated that in his opinion it was arguable that SFW had no capacity regarding finances or general welfare since May 2010.
Dr Rebgetz, a general practitioner, in August 2010, who visited the nursing home on a regular basis, commented that SFW’s cognitive skills were at a level able to make appropriate decisions about personal care and financial arrangements.
To some extent this contrasts with an assessment by a Jocelyn San Jose, a Clinical Nurse, in August 2010. She used a psycho-geriatric assessment scale, in particular the Cognitive Impairment Scale. She noted memory loss and a score of 6 on the scale, which indicated some impairment. She noted that it was unlikely that SFW was independent in matters requiring reasoning and judgment, and he may require strategies to assist him with some tasks.
In November 2010, a general practitioner by the name of Dr Humphries in Hong Kong stated that SFW did not appear confused. He showed no sign of dementia or delirium and he was competent to handle his affairs.
The final written report available to the Tribunal was that of a psychiatrist, Dr Ting, who provided a report to the Tribunal on 23 February 2011. This report was provided on the Tribunal’s standard health professional format. He noted an MMSE score of 24 out of 30, with poor arithmetic ability and disorientation in respect of time and place.
He noted that SFW could understand general health conditions. He could decide where he was to live, but noted that he was in the early stages of dementia and he could be easily influenced by people with a conflict of interest. He stated that SFW was not able to make complex financial decisions.
The Tribunal had the benefit of the views of parties present at the hearing. Cheryl Maclaine, the Clinical Nurse Consultant who had known SFW up until August 2010, advised the Tribunal that SFW had some short term memory loss, but was generally cognitively aware. She stated that he was very affirmative in his wish to go to Hong Kong. She noted that he had a high level of physical needs.
SS and HV agreed that their father had some short term memory loss. HV advised the Tribunal that her father was very coherent on Skype and that she agreed with Dr Ting. They noted that there was some conflict among reports, but were of the view that SFW can think for himself and can come to a decision.
They considered that their father had capacity for certain areas, but needed assistance with complex financial matters. They both indicated that there was evidence of forgetfulness.
SS advised that if one is patient with SFW, he will eventually get there, and he understands. He did note, however, that SFW is prone to letting others make the decision, that he lets go and says, “You decide. Whatever you decide I will go with.”
SS and HV noted that some of the assessments were done when SFW was under stress.
The views of SM as expressed through Andrew Lander were that SM had relied on medical experts in the decision to place SFW. He considered he did not have capacity for complex financial matters, and that because of his poor memory, there was some doubt about capacity for simple matters.
What did the Tribunal make of all this? The Tribunal’s view about capacity is as follows: The Tribunal considers that SFW is easily influenced, that he exhibits short term memory loss, and as a result is unable to retain the consequences of decisions in his memory.
The Tribunal certainly considers that SFW is unable to express a view, but considers that his memory, poor short term memory, compromises his decision-making. The Tribunal noted that SFW was unable to remember the severing of either the joint tenancy or the two revocations of the Enduring Power of Attorney. He was also somewhat confused about the nature of the hearing, and he was unable to fully explain the notion of an Enduring Power of Attorney.
The Tribunal was satisfied that the presumption of capacity which is defined in schedule 4 of the Guardianship and Administration Act 2000 is rebutted, the definition of “capacity” being understanding the nature and effect of decisions about matters, being able to make decisions freely and voluntarily, and being able to communicate decisions in some way.
I now turn to other matters that exercise the Tribunal’s mind in reaching its decision. These are not in any particular order of importance.
The Tribunal noted that the family does not want SM making decisions, as she has moved on with her life. The family are very concerned that another man is living in the matrimonial house. The family wish to respect their father’s wishes not to return to the nursing home.
Other matters weighing on the Tribunal’s mind are that SM as Attorney had used some of the Adult’s funds to purchase a car whose ownership she could not adequately explain, apart from the fact that she had purchased the vehicle for the use of her new boyfriend.
The Tribunal considers this breaches various sections of the Powers of Attorney Act 1998, including s 66, Acting Honestly and with Reasonable Diligence. It is arguable that the gifting provisions and the presumption of undue influence provisions have also been breached.
The Tribunal considers, however, that the Attorney did seek appropriate advice in respect of her husband’s long term care, whereas SS did not. The evidence was that he did not have his father’s needs assessed prior to his removal to Hong Kong. There was no consultation with the Attorney or his health provider over the move, and there was no consultation with the Attorney over the severing of the joint tenancy, despite the fact that this had been the matrimonial home for some 25 years.
The Attorney, however, has an inherent conflict as she plans to restore the joint tenancy for her own benefit. The Tribunal considers there are some issues with her grappling with objectivity in this regard, as the restoration of the joint tenancy on her evidence is for her long term security, and thus it is in her interests rather than necessarily considering the principal’s best interest.
The Tribunal considers that SS lacks objectivity regarding SM’s interests and would not consider him to be a suitable Administrator.
Whilst SFW is in Hong Kong, the Tribunal notes he has no access to Centrelink benefits, but he does so when he is in Australia. The Tribunal also took into account that the children had agreed to SM looking for a nursing home placement for SFW.
The Tribunal’s conclusions are that SM hasn’t always acted appropriately as financial attorney, and she gave some acknowledgement of this. She has acted appropriately as attorney for personal and health matters, whereas the Tribunal considers that SS has not acted appropriately because of the hurried removal of his father to a foreign country without putting in place appropriate provisions for either income or income support, or personal care support.
In the Tribunal’s view, the children need to show how SFW will be better off if he does not return to Australia. The children are able to have SFW’s needs assessed and put a care plan to the Attorney, SM.
The Tribunal considers that there is a need for independent financial managers, because the ownership issues of the house need to be investigated. There is a need for objectivity in this. SS has assisted his father to remove funds from the joint account. There is a need to establish an income source, and the Adult’s interest in the joint account needs to be investigated and possibly recovered.
The Tribunal has concluded that SM should stay in place as Attorney for personal and health matters, as she has acted appropriately in that regard.
The formal orders of the Tribunal are these:
(a) That the following Enduring Power of Attorney for SFW is revoked pursuant to s 116(b) of the Powers of Attorney Act 1998: the Enduring Power of Attorney dated 13 August 2008, appointing SM as Attorney for financial matters.
(b) The revocations of 17 November 2010 and 23 December 2010 of the Enduring Power of Attorney which appointed SM as Attorney for personal and health and financial matters on 13 August 2008 are declared invalid, pursuant to s 49 of the Powers of Attorney Act 1998.
(c) The Public Trustee is appointed Administrator for all financial matters. The Administrator is to provide a financial management plan to the Tribunal within four months. The Tribunal directs the Administrator to provide accounts to the Tribunal when requested. This appointment will remain current until further order of the Tribunal.
(d) The Administrator will be directed to identify within three months by way of a search of records of the Titles Office, any property held by the Adult, and to lodge with the Registrar of Titles a copy of this Order, and to provide to the Tribunal a copy of the records and lodgement summary.
(e) The Tribunal will make a declaration that SFW does not have capacity for personal and financial matters.
(f) The Application for Directions is dismissed, and within three months SS and HV are to arrange an assessment of SFW’s care needs and present a care plan to the Attorney, SM, for consideration.
(g) The Application for the appointment of a Guardian is dismissed.
0
0
0